On Hate Speech, Conciliation vs. Criminal Prosecution, Is Conciliation Enough?

If the prosecution of the Environment Minister for hate speech had gone ahead, it would have been the first in country case of high profile person charged with hate speech that actually proceeded to trial. As it happens this is not to be case, the charges against him have been dismissed, the Environment Minister and MP for Matuga, Chirau Ali Mwakwere, had been charged for hate speech under sections 13 and 62 of the National Cohesion and Integration (NCI) Act, 2008, for remarks made during a 2010 by-election.

Section 13 of the (NCI) Act criminalises the use of threatening, abusive or insulting words, acts or materials that either stir up ethnic hatred, or that are likely to stir up ethnic hatred. While Section 62 of the Act criminalizes, “any person who utters words intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity or race.”

Inciting violence, or hatred, on the basis of ethnicity or race, or uttering words that incite the same is clearly a criminal offence under the NCI Act. So it probably came as a surprise to most Kenyans when the hate speech charges against Minister Chirau Ali Mwakwere were dropped after the complainants withdrew the case. After all the Minister had tried without success, four times, to block his prosecution for hate speech with the court ruling at one point that it was, “against public policy to delay criminal proceedings” against him, and that unregulated speech, such as used by the Minister in 2010, was the type of speech that could lead to social and political conflagration.

So what are the circumstances lead to the charges being dropped? The Minister apologised. The Director of Public Prosecutions (the DDP) dismissed the hate-speech charges against the Minister after he apologised for his utterances stating, “On deep reflection, I humbly tender my most sincere apology to all Kenyans for the remarks I made on July 2010 and during the campaigns for the by-elections as Member of Parliament for Matuga. After lengthy meetings and deliberations with NCIC [the National Cohesion and Integration Commission], Muhuri and other distinguished leaders from the coast region I have signed a conciliation agreement whose effect to apologise and reconcile communities in the coast region and by extension all Kenyans”

Article 52 NCI Act allows for parties to come to a conciliatory agreement, stating, “If following conciliation, parties to a complaint reach an agreement with respect to the subject matter of the complaint, the Secretary shall record the agreement and the parties shall be bound to comply with such agreement as if it were an order of the Commission.” In layman’s terms the NCI Act allows parties to make peace however there is nothing in the clause to preclude criminal proceedings even if conciliation takes place. At this point it is difficult to tell what precedent has been set by the DPP’s decision to drop the hate speech charges against the Minister, will conciliation become a subtitute for the criminal justice process?

In Kenya hate speech and incitement have been a precursor to violence - before, during and after elections. Hate speech and incitement were certainly a precursor to the violence the country witnessed after the 2007 elections. With regards to the inciting of hatred or violence there is direct connection between speech and action and the government must be begin to seriously hold people accountable for inciting people to violence and hatred. Surely this was one of the reasons for the establishment of the National Cohesion Integration Commission and the enactment of the NCI, Act.

Posted by Mzalendo Editor on Sept. 21, 2012

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